This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1672

 

State of Minnesota,
Respondent,

vs.

Ozhaawaskoo Giishig,
Appellant.

 

Filed November 22, 2005

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

Sherburne County District Court

File No. K104136

 

John M. Stuart, Minnesota Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and

 

Mark D. Nyvold, Assistant Public Defender, Suite W-1610, 332 Minnesota Street,        St. Paul, MN 55101 (for appellant)

 

Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

David E. Schauer, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Appellant challenges his conviction of third-degree assault and terroristic threats, arguing that (1) he was denied the right to present a defense by the exclusion of evidence that his girlfriend, whom he claimed to have assaulted in self-defense, was pregnant with his child; (2) the district court erred in failing to instruct the jury sua sponte that self-defense applied to the terroristic-threats charge as well as to the assault charge; (3) the district court incorrectly deprived him of the right to represent himself at sentencing; and (4) the upward sentencing departure violated his constitutional right to a jury trial.  In a pro se supplemental brief, appellant argues ineffective assistance of counsel and insufficiency of the evidence.  Because any error in excluding testimony of the victim’s pregnancy was harmless, the district court did not err in jury instructions, appellant waived his right to pursue self-representation at sentencing, and appellant’s arguments of ineffective assistance of counsel and insufficiency of evidence are without merit, we affirm the convictions.  Because sentencing violated Blakely v. Washington,124 S. Ct. 2531 (2004), we reverse the sentence imposed and remand for resentencing.

FACTS

 

            Appellant; his girlfriend, Renee Geshick; his girlfriend’s sister, Carol Geshick; Carol’s ex-boyfriend, Craig Person; and the Geshicks’ cousin, Charles Hanks, indulged in a night of drinking that began on a trip from Detroit Lakes to the White Earth Reservation and ended at appellant’s home in Big Lake.  Carol Geshick testified that she and appellant consumed cocaine at White Earth, and appellant admitted he also consumed cocaine later at his home.  At some point, when all of these people were in the living room of appellant’s home, Renee Geshick approached appellant, and appellant pushed her.  Renee Geshick fell backwards, struck the back of her head, and was “in and out of consciousness.”  Appellant kicked Renee Geshick in the face at least three times and kept her from getting up.  The others sat on the couch and did not assist Renee Geshick because, according to Carol Geshick, appellant waved a knife and said he would stab them if they came to her assistance.  Appellant testified that he assaulted Renee Geshick in self-defense and threatened the others because he was afraid they would gang up on him. 

            Appellant’s aunt, Lou Ann Jackson, and her boyfriend, Chuck Phillips, lived with appellant and were sleeping when the group arrived.  They left when they heard raised voices, but Lou Ann Jackson testified that as she was leaving she saw Renee Geshick run at appellant and try to hit him at least three times, screaming and yelling something about “the native mob.”  Jackson testified that appellant put his hand out, pushing Renee Geshick back twice.  The third time she came at him, appellant “put his foot in the air,” and Renee Geshick ran into it and was knocked out. 

            Appellant testified that after he kicked Renee Geshick, he told her to stay down because he was afraid that she would try to hold him down while the others attacked him.  He testified that Carol Geshick and Hanks had verbally threatened him during the evening. 

            Eventually, appellant took some money out of Renee Geshick’s purse and told everyone to leave.[1]  Carol Geshick and Renee Geshick went to the neighbor’s house to call 911.  Hanks and Person left appellant’s residence, and appellant also left.

            Appellant was charged with second-degree assault, third-degree assault, and terroristic threats.  Before trial, the state moved to exclude any testimony that Renee Geshick was pregnant with appellant’s child at the time of the assault, arguing that evidence of the pregnancy was not relevant to the issue of whether an assault occurred and was prejudicial.  Appellant opposed the motion, contending that as part of his self-defense theory he would argue that because he knew Renee Geshick was carrying his child, he would not have done anything to harm her or the child unless he feared for his own safety.  The district court excluded the evidence of Renee Geshick’s pregnancy as not relevant to proving “whether or not an assault occurred.”  At trial, appellant testified twice that Renee Geshick was pregnant with his child, but the district court sustained the state’s objection each time and ordered the jury to disregard the testimony. 

            The jury was instructed on self-defense in connection with the assault against Renee Geshick.  During deliberations the jury asked if self-defense applied only to the assault on Renee Geshick or to all three charges.  The district court, with approval of both counsel, answered that it was up to the jury to review all of the jury instructions and determine their application to the facts.  The jury acquitted appellant of second-degree assault and found him guilty of third-degree assault against Renee Geshick and terroristic threats. 

            After the trial but before sentencing, appellant filed a post-trial petition to proceed pro se, waiving his right to a public defender.  Appellant also filed two pro se motions for a new trial.  At a post-trial hearing, the district court addressed new criminal charges against appellant and briefly addressed appellant’s petition to proceed pro se and his new-trial motions.  During this hearing, appellant was removed from the courtroom prior to the district court’s ruling on these issues due to appellant’s use of profanities and insults directed to the district court.  At his later sentencing hearing, appellant did not refer to or renew his request to represent himself, and his attorney argued for imposition of the presumptive sentence.  The district court denied appellant’s new-trial motions as untimely and granted the prosecution’s motion for an upward durational sentencing departure based on its findings that Renee Geshick was particularly vulnerable and that the assault was committed with particular cruelty.  The district court sentenced appellant to 45 months for the assault, a 30-month upward durational departure from the presumptive guidelines sentence.  This appeal followed.

D E C I S I O N

 

I.          Exclusion of evidence of victim’s pregnancy

            Under the due process clauses of the Fourteenth Amendment to the United States Constitution and Article I, section 7 of the Minnesota Constitution, every criminal defendant has the right to be afforded a meaningful opportunity to present a complete defense.  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992).  A defendant has an opportunity to develop his version of the facts through witness testimony so that the jury may decide where the truth lies.  State v. Quick, 659 N.W.2d 701, 713 (Minn. 2003).  But a defendant does not have the right to introduce evidence that is irrelevant or when the prejudicial effect of such evidence outweighs its probative value.   State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).  A district court has wide discretion in determining the relevancy of evidence.  State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978).  “[E]ven in cases . . . where the defendant contends that his constitutional rights have been violated, evidentiary questions are reviewed for abuse of discretion and any error is subject to harmless error analysis.”  Quick, 659 N.W.2d at 713 (citing State v. Greer, 635 N.W.2d 82, 91 (Minn. 2001)); State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).

            Appellant sought to present evidence that Renee Geshick was pregnant with his child at the time of the assault to bolster his claim of self-defense, based on his assertion that, knowing she was pregnant with his child, he would only have assaulted her in self-defense.  The district court held that the pregnancy was not relevant to whether or not an assault occurred.

            Relevant evidence is evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Minn. R. Evid. 401.  “Evidence is relevant when it ‘logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords a basis for or supports a reasonable inference or presumption regarding the existence of a material fact.’”  State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997) (quoting State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995)). 

            The elements of self-defense are:  (1) an absence of aggression or provocation on the part of the defendant; (2) defendant’s actual and honest belief that imminent death or great bodily harm would result; (3) a reasonable basis for this belief; and (4) an absence of reasonable means to retreat or otherwise avoid the physical conflict.  State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997).  Although a defendant does not have a duty to retreat when claiming self-defense against an attack in his home, State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001) (Glowacki II), to find that a defendant acted in self-defense, a jury must “find that the defendant reasonably believed that force was necessary and that the defendant used only the level of force reasonably necessary to prevent the harm feared.”  Id.at 399 (citing Minn. Stat. § 609.06).  “A defendant claiming self-defense may use a level of force that is reasonable and only when there is no reasonable alternative to the use of force.”  Id. at 403.  Once appellant had met his burden of producing some evidence to support a claim of self-defense to the charge of assault, the state had to disprove beyond a reasonable doubt at least one of the elements of self-defense.  State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985); State v. Charlton, 338 N.W.2d 26, 29 (Minn. 1983); State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).

            At issue in this case were the questions of who was the aggressor, whether appellant had a reasonable belief in the need to repel an assault by Geshick with force, how much force he actually used, and whether the amount of force appellant used was reasonable.  We conclude that evidence of Renee Geshick’s pregnancy had some probative value because it may have affected the jury’s view of who was the aggressor and what appellant reasonablybelieved about the need to use force and the amount of force to use.  See State v. Carlson, 268 N.W.2d 553, 559 (Minn. 1978) (stating that evidence is relevant and has probative value when it, in some degree, advances the inquiry); State v. Upson, 162 Minn. 9, 12-13, 201 N.W. 913, 914 (1925) (stating that a fact is relevant if it warrants a jury in drawing a logical inference assisting, even if remotely, the determination of the issue in question). 

            Even if evidence is logically relevant, however, Minn. R. Evid. 403 permits the exclusion of evidence that the district court finds is substantially more prejudicial than probative.  Prejudice has been defined as “the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.”  State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996) (quotation omitted).  Appellant argues that the state’s concern about the prejudicial effect of the evidence on the jury’s view of Renee Geshick did not outweigh his right to fully present his theory of self-defense.  But there was also a substantial likelihood in this case that evidence of Renee Geshick’s pregnancy would have been extremely prejudicial to appellant.  Appellant was able to testify about his romantic relationship with Renee Geshick and his care for her.  Given the minimal relevance of the pregnancy evidence to appellant’s claim of self-defense and the potential for prejudice if the evidence had been admitted, we conclude that the district court did not abuse its discretion in excluding the evidence.  See Quick, 659 N.W.2d at 716 (stating that although a district court would not have been in error had it admitted “marginally relevant” evidence, the exclusion of such evidence was not an abuse of discretion).  Additionally, even if exclusion of the evidence could be deemed error, we conclude that any error was harmless. 

            The party claiming the court erred in admitting evidence has the burden of showing error and any resulting prejudice.  Id.  “In applying the harmless error test, we ‘must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.  If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.’”  Id. (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)). 

            In this case, the jury found appellant guilty of third-degree assault against Renee Geshick.  The jury, therefore, must have believed that the state disproved appellant’s claim of self-defense by disproving one of the four elements of self-defense.  There was some dispute about whether Renee Geshick was the aggressor, and there was a great deal of evidence that appellant repeatedly kicked Renee Geshick, causing multiple facial fractures, even after Renee Geshick was on the floor unconscious.  Based on the record as a whole, we conclude that overwhelming evidence established, at a minimum, that the level of force appellant used was unreasonable, defeating his claim of self-defense, and that exclusion of evidence of Renee Geshick’s pregnancy was harmless beyond a reasonable doubt.

II         Jury instruction

Appellant argues that the district court committed plain error in not sua sponte instructing the jury that self-defense applied to the charge of terroristic threats.  Generally, a defendant’s failure to object to jury instructions before they are presented to the jury is a waiver of the right to appeal the instructions.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But even when there was no objection, a reviewing court may “reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.”  State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980). 

This court applies the plain-error test for determining whether unobjected-to errors require reversal, asking whether the instructions: (1) contain error; (2) that is plain; and (3) that affects the defendant’s substantial rights.  State Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Appellant must bear the “heavy burden” of showing that any error was prejudicial and affected the outcome of the case and thereby affected his substantial rights.  Id. at 741.  Error is prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury’s verdict or otherwise affect the outcome of the case.  Id.  When this test is satisfied, we must then decide whether or not to address the error to ensure fairness and to safeguard the integrity of the judicial process.  Id. at 740.

An instruction is erroneous if it materially misstates the law.  State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002); State v. Hare, 575 N.W.2d 828, 833 (Minn. 1998).  An error is plain if it is “clearly contrary to the law at the time of appeal.”  Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997). 

In State v. Gustafson, the supreme court held it was not error for a district court to fail to sua sponte give the jury a self-defense instruction when, although the evidence suggested self-defense could have been raised, the defendant failed to request a self-defense instruction, failed to object to the omission of a self-defense instruction, and did not argue self-defense at trial or suggest reliance on self-defense in questioning witnesses.  610 N.W.2d 314, 320 (Minn. 2000).  “Thus, while the trial court has the ultimate responsibility to ensure that all essential instructions are given under the law, that responsibility does not require the court to instruct the jury, sua sponte, on the affirmative defense of self-defense when it was not raised, argued, or requested.”  Id.(quotation omitted).  In this case, it is undisputed that appellant’s counsel did not assert self-defense or specifically request a self-defense instruction with regard to the charge of terroristic threats.  And appellant recognizes that there is no decisional law in Minnesota holding that a defendant may assert self-defense to a charge of terroristic threats.  Appellant has therefore not demonstrated that there was any error, let alone plain error, in the district court’s failure to sua sponte instruct the jury in a manner not requested by appellant’s counsel and not clearly required by law.

 

III.       Request to proceed pro se at sentencing

            The Sixth and Fourteenth Amendments provide criminal defendants the right to represent themselves in state criminal proceedings.  Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975).  The right to self-representation “must be honored out of that respect for the individual which is the lifeblood of the law.”  Id.at 834, 95 S. Ct. at 2541 (quotation omitted).  “Indeed, [this right] embodies such bedrock concepts of individualism and personal autonomy that its deprivation is not amenable to harmless error analysis.”  State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).  “Obtaining reversal for violation of such a right does not require a showing of prejudice to the defense, since the right reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.”  Flanagan v. United States, 465 U.S. 259, 268, 104 S. Ct. 1051, 1056 (1984).

            When a defendant seeks to represent himself, the district court must base its decision on: “(1) whether the request is clear, unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives his right to counsel.”  Richards, 456 N.W.2d at 263 (citing Faretta, 422 U.S. at 835, 95 S. Ct. at 2541).  This court reviews denial of a request to represent oneself for clear error.  State v. Christian, 657 N.W.2d 186, 190 (Minn. 2003).

            If a defendant requests to represent himself after the beginning of trial, however, the right is not as inviolable and the district courts must balance the right of the defendant against the possibility of disruption and undue delay.  Christian, 657 N.W.2d at 191; see also United States v. Wesley, 798 F.2d 1155, 1155 (“It is fundamental . . . that the right to self-representation is unqualified only if demanded before trial.”).  The supreme court has upheld denial of a request for self-representation when it was untimely and likely to cause or calculated to cause delay because it was made near the end of a long trial, and was not asserted unequivocally but was stated as a preference for different counsel rather than a desire to self-represent.  State v. Blom, 682 N.W.2d 578, 613 (Minn. 2004).  Courts have also indicated that it is proper to deny a request to represent oneself when it is clear the party did not affirmatively pursue the request.  See Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (waiver of right to self-representation may be found it if reasonably appears to court that defendant has abandoned request); People v. Kenner, 272 Cal. Rptr. 551, 554 (Cal. Ct. App. 1990) (stating that defendant who asked for a hearing to assert his right to represent himself but later neglected to follow up on his request was properly deemed to have abandoned the request).  This court has held that a defendant waived his right to self-representation by “repeated disruptive behavior” at trial.  State v. Holland, 421 N.W.2d 382, 387 (Minn. App. 1988) (“Disruptive conduct by an accused at trial may justify his removal from the courtroom and effectively constitute a waiver of [S]ixth [A]mendment rights.”).

            In this case, appellant’s request was made days after the verdict was rendered.  When the district court attempted to conduct a hearing on appellant’s competency to proceed pro se at sentencing, appellant responded with insulting language and ultimately told the district court it could “piss on” his motions for all he cared.  Appellant’s conduct was improper and disruptive and resulted in his being removed from the courtroom.  The motion for self-representation was not renewed or reasserted at the time of sentencing, and we conclude that the request was abandoned or waived and the district court did not err by failing to rule on it.  Furthermore, appellant presents no authority for his argument that, because his post-trial request to represent himself at sentencing was not granted, his convictions should be reversed.

IV.       Sentencing

            Appellant argues that the district court’s upward durational departure warrants reversal because it was based on a fact found by the court—and not the jury—in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004).  Although appellant was found guilty and sentenced before Blakely was decided, he is entitled to a review of his sentence in light of Blakely because Blakely announced a new rule of constitutional criminal procedure while his right to direct appeal was pending.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  The application of Blakely presents a constitutional issue, which this court reviews de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004). 

In Blakely, the Supreme Court held that the sentencing judge may not impose a sentence greater than “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  124 S. Ct. at 2537 (emphasis omitted).  The Court held that an upward durational departure could not be imposed based on judicial findings alone.  Id.at 2537-38.  Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 133 (Minn. 2005).  In Minnesota, Blakely requires that factual findings supporting an upward durational departure from the presumptive guidelines sentence must be found by a jury, admitted by the defendant, or found by the district court with the defendant’s consent.  Id. at 141-142.

Appellant’s sentence in this case violated Blakely because the upward departure was based on findings made by the district court rather than by a jury.  We therefore reverse the sentence imposed and remand for resentencing in accord with Blakely.

V.        Appellant’s pro se supplemental claims

 

Appellant raises pro se claims of insufficient evidence and ineffective assistance of counsel.

a.         Insufficiency of the evidence

 

In assessing a claim attacking the sufficiency of evidence, the evidence is viewed in the light most favorable to the verdict to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.”  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  The reviewing court assumes that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the finder of fact.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). 

Appellant claims that “the extent of the injuries sustained by the alleged victim do not show that [he] repeatedly struck or kicked her [therefore] the force used . . . was reasonable under the circumstances.”  But Carol Geshick testified that she saw appellant kick Renee Geshick in the face “too many [times] to count.”  This is clearly evidence that the jury could have relied on in determining that appellant used unreasonable force under the circumstances.

Appellant also contends that Carol Geshick testified that, “Renee went after appellant . . . .”  But this testimony does not appear in the transcript.  Appellant points to inconsistencies between the version of events Carol Geshick gave to the police and her in-court testimony.  But the conflicting evidence was for the jury to weigh in making its factual determination as to who started the violence and whether appellant reacted reasonably.  Inconsistencies in Renee Geshick’s and Carol Geshick’s versions of the events were heard by the jury, which obviously resolved credibility issues in favor of the state’s theory of the case.  This court does not interfere with the fact-finder’s credibility determinations or resolution of conflicting evidence.  See State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).

b.         Ineffective assistance of counsel

 

            Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal. See Robinson v. State, 567 N.W.2d 491, 495 & n.3 (Minn. 1997); Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).  A postconviction hearing provides the court with an opportunity to consider “additional facts to explain the attorney’s decisions,” so as to properly consider whether a defense counsel’s performance was deficient.  Black, 560 N.W.2d at 85 n.1.  But where further development of the record is not required to assess an appellant’s ineffective-assistance claim, an appellate court will review such a claim on direct appeal.  See State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999). 

            Appellant contends his counsel:  (1) failed to effectively cross-examine Carol Geshick and Renee Geshick; (2) lacked familiarity with discovery materials and failed to interview witnesses; (3) failed to seek instruction on “no duty to retreat” in one’s home; (4) elicited “incriminating statements” from appellant on direct examination; (5) failed to seek introduction of “exculpatory” blood-alcohol level, mental-health status, and medical reports showing Renee Geshick’s injuries were pre-existing from her “barroom brawls”; (6) failed to object to the state’s in limine motion; and (7) failed to subpoena two eyewitnesses (presumably Hanks and Person).

Appellant bears the burden of proof on his claims of ineffective assistance of counsel.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  To prove ineffective assistance of counsel, he must show that (1) his attorney’s performance was deficient; and (2) the performance deprived him of a fair trial.  State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001).  Under the first prong, appellant must show that his attorney’s performance “fell below an objective standard of reasonableness.”  Id.  Under the second prong, appellant must show by a preponderance of the evidence that there is a reasonable probability the case would have had a different outcome but for his attorney’s errors.  Id.   This court need not address both elements “if the defendant makes an insufficient showing on one.”  Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984). 

“An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”  Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (quotation omitted).  Appellant has made no attempt in his brief to show how the outcome of his case would have been different but for the alleged errors of his counsel; therefore he has not met his burden under Strickland.

Affirmed in part, reversed in part, and remanded.